Police Use of Force: Special Prosecutor

By Winston Smith

My job as a prosecutor is to do justice. And justice is served when a guilty man is convicted and an innocent man is not.

– Sonia Sotomayor

In the last installment of this series, we reviewed the use of body cameras as a way to reduce police use of force. The evidence seems to suggest that the use of body cameras is effective in both protecting both citizens and also police from the use of force. However, this should not be the only policy alternative analyzed.

While body cameras can provide evidence of police maleficence if there is no way to act upon this evidence, what’s the point of the cameras? Therefore, it is necessary to look at ways in which institutional forces can lower the incidence of outrageous uses of force. One type of institutional structure could be the implementation of a special prosecutor to investigate police misconduct.

There is a strong tie between prosecutors and police officers as they rely on each other for the efficient execution of their jobs. As mentioned earlier, prosecutors fail to charge many officers of excessive force when the opportunity presents itself which leads to “‘questions about prosecutors’ sympathies for the defendant – sympathies that may prevent the prosecutor from being an effective advocate for the state.” The appointment of a special prosecutor to investigate police misconduct would bypass any sympathies that might be felt between the prosecutor and the defendant, helping to ensure that the decision to charge or not to charge a defendant is made in an ethical way. There are multiple ways to implement this model; one model is to establish a permanent special prosecutor’s office while another would be through appointing an independent special prosecutor when needed. There are also multiple ways in which to establish a special prosecutor such as states providing “state attorney generals additional prosecutorial authority over fatalities involving police and create permanent ‘special prosecutors’ that are housed within the state office of the attorney general to provide a level of insulation from local law enforcement.” A second way is in limiting the special prosecutor’s responsibilities to “‘the oversight, investigation and prosecution of police or public official misconduct, keeping them independent from other policing functions.’” A third way is to implement an “officer-involved-death” statute which “requires that at least two independent investigators examine cases.” The last way to do this is through “automatic referral outside the jurisdiction in fatal cases involving police is a possibility.”

Implementing a special prosecutor to investigate police misconduct has proven to be very effective when put into place. When New York implemented a special prosecutor’s office to investigate corruption, the office “established a remarkable track record in fairly, objectively and successfully investigating and prosecuting police officers and others in the criminal justice system suspected of criminality.” Also, in theory, this policy alternative should be very effective as it helps administer justice in the fairest way possible by removing conflicts of interest. In doing so, the special prosecutor is able to increase the rapport of the police by showing that they are held accountable for their actions, and the officers who might sully an otherwise upstanding force are then able to be removed from their position. Along with this, there is the obvious benefit to those concerned about police brutality as it allows those officers who have acted out of line to be disciplined, rather than able to leave unscathed.

This type of policy alternative also has solid political feasibility. In Missouri, both Republican and Democratic Representatives to the state legislature were able to come together and propose a bill that would “require a special prosecutor head up investigations of officer-involved fatal shootings.” A Democratic representative “wants to file that bill because of the unrest among people in Ferguson after Michael Brown shooting” while a Republican representative “says such a change would combat the public perception that bias can exist no matter who the individuals involved are.” Along with Missouri, Gov. Andrew Cuomo issued “an executive order naming the state attorney general as a special prosecutor for police-related civilian deaths.” In the reasoning for this executive order, the Governor explicitly mentioned the need for trust in the justice system and the need to restore public faith. This alternative has this solid political feasibility because it allows the politicians who introduced and sponsor this law to be viewed as those who would restore fairness to the justice system and combat the notion that police are able to get away with anything.

Stay tuned for next week’s post wherein I explore the viability of implementing community policing.